Archive for August, 2013

By Bruce P. Miller

Thursday, August 1st, 2013

The New Jersey Workers’ Compensation Act creates an entity called the Second Injury Fund. All employers in the State of New Jersey are required to pay into this fund through their Workers’ Compensation policy premium. The Fund is administered by the Office of the Attorney General of the State of New Jersey. The Fund comes into play in those cases in which an injured worker has been rendered totally and permanently disabled.

The purpose of the Fund is to pay such workers in the following circumstance. It has to be established that the injured worker will never be able to work again, in any capacity or in any form of employment. That disability must be the result of two things: injuries or illness sustained as a result of employment and injuries or illness that occurred prior to the work-related accident or illness.

The historic purpose of the Fund has been to encourage the hiring of workers who sustained and suffered from various injuries or illnesses prior to their employment by relieving the employer of the responsibility to pay for disability that had nothing to do with and preceded that worker’s employment.

An example of such disability is the following. A worker suffers a severe injury as a result of an accident during the course of employment; however, that injury, in and of itself, does not render the worker unable to return to work. The work-related disability is of a partial nature. However, if the worker had suffered pre-existing health issues that, in combination with the work-related injury, render that worker 100% permanently and totally disabled, the Second Injury Fund is responsible to pay for the pre-existing disability and the employer is responsible to pay for that disability which arose as a result of the work-related accident.

Another illustration of Second Injury Fund liability is the following. An individual, as a child, is playing with a BB gun and is accidentally shot in one eye, resulting in blindness in that eye. That person continues to live his/her life and has a working career. One day, while working, an accident occurs on the job in which something strikes the other eye causing blindness in that eye. The combination of the two injuries, pre-existing and work-related, result in total blindness and thus total permanent disability. In that situation, the employer is responsible to pay 50% total permanent disability for the work-related blindness and the remaining 50% is paid by the Second Injury Fund for the childhood blindness.

Total and permanent disability benefits are paid for the rest of the worker’s life.

As a practical matter, workers often tend to forget or minimize pre-existing health problems because their focus is often entirely on the work-related injury. However, as illustrated above, an individual’s pre-existing health issues are quite important in a claim for total permanent disability benefits. It is our practice to inquire closely of an individual who is making a claim for total permanent disability about that person’s entire health history, including childhood injuries, injuries arising out of any motor vehicle accidents throughout that person’s life as well as diseases for which that individual suffers and may see a family physician for treatment, such as diabetes, hypertension, hearing loss, heart problems, breathing issues and psychological problems. It has to be shown that if such problems exist, they continue to impact the person’s life and that person’s ability to return to work.

Included among a worker’s pre-existing health history are any work-related injuries sustained throughout that person’s life, whether or not a Workers’ Compensation award was obtained.

Total permanent disability entitles a worker to receive 70% of salary up to a set maximum rate. The maximum rate in 2013 is $826.00 per week. These benefits are paid to a totally disabled individual for life, assuming that person does not recover to the point of being able to return to work.

When preparing a Workers’ Compensation case in which a claim for total permanent disability benefits is made, it is very important that a complete medical and health history be presented. This often requires obtaining and reviewing health records one may have respecting previous illnesses and injuries. The input of family members and friends who are able to remember injuries and illnesses in the past that the worker may have forgotten is extremely important and helpful.